2014
2014
2022-10-13
act
government
publicgeneral
act.reprint
act-2019-025
allinforce
2014-05-13
2014-05-13
0
act-2014-029
b80f17c0-52c4-46d5-90db-3158ff359b7a
47dc75fa-1d1d-43f8-a45a-b9cbf57779bf
2014
none
See also—
Children and Young Persons (Care and
Protection) Amendment (Family is Culture) Bill
2022
Editorial note
The Parliamentary Counsel’s Office is
progressively updating certain formatting styles in versions of NSW in force
legislation published from 29 July 2019. For example, colons are being
replaced by em-rules (em-dashes). Text of the legislation is not
affected.
This version has been
updated.
An Act to create the office of Advocate for
Children and Young People and to provide for the functions of that office; to
repeal the Commission for Children and Young
People Act 1998 and the Youth Advisory
Council Act 1989; and for other
purposes.
Part 1Preliminary
1Name of Act
This Act is the Advocate for
Children and Young People Act 2014.
2Commencement
This Act commences on a day or days to be
appointed by proclamation.
3Definitions
(1)
In this Act—
Advocate means the Advocate
for Children and Young People appointed under this Act.
child means a person under the
age of 12 years.
Council means the Youth
Advisory Council established under this Act.
function includes a power,
authority or duty, and exercise a function includes
perform a duty.
government agency
includes any public or local authority.
non-government
agency includes any commercial or non-commercial
organisation.
Parliamentary Joint
Committee means the joint committee called the Committee on
Children and Young People constituted under this Act.
Presiding Officer
means the President of the Legislative Council or the Speaker of the
Legislative Assembly. However—
(a)
if there is a vacancy in the office of President,
the reference to the President is a reference to the Clerk of the Legislative
Council, or
(b)
if there is a vacancy in the office of Speaker,
the reference to the Speaker is a reference to the Clerk of the Legislative
Assembly.
special inquiry means a
special inquiry conducted by the Advocate under Part 5.
young person means a person
who is 12 years of age or above but under 25 years of
age.
(2)
Notes included in this Act do not form part of
this Act.
Part 2Advocate for Children and Young People
4Appointment of Advocate
The Governor may appoint an Advocate for Children
and Young People.
5Term of office of Advocate
(1)
The Advocate holds office for such term, not
exceeding 5 years, as may be specified in the instrument of appointment, but
is eligible (if otherwise qualified) for re-appointment.
(2)
A person is not eligible to be appointed for more
than 2 terms of office as Advocate (whether or not consecutive
terms).
6Full-time office of Advocate
The office of Advocate is a full-time office and
the holder of the office is required to hold it on that basis, except to the
extent permitted by the Minister.
7Employment and remuneration
(1)
The employment of the Advocate is (subject to
this Part) to be governed by a contract of employment between the Advocate and
the Minister.
(2)
The following provisions of or made under the
Government Sector Employment Act 2013
relating to the employment of Public Service senior executives apply to the
Advocate (but in the application of those provisions a reference to the
employer of any such executive is to be read as a reference to the
Minister)—
(a)
provisions relating to the band in which an
executive is to be employed,
(b)
provisions relating to the contract of employment
of an executive,
(c)
provisions relating to the remuneration,
employment benefits and allowances of an executive.
8Vacancy in office of Advocate
(1)
The office of Advocate becomes vacant if the
holder—
(a)
dies, or
(b)
completes a term of office and is not
re-appointed, or
(c)
resigns the office by instrument in writing
addressed to the Minister, or
(d)
becomes bankrupt, applies to take the benefit of
any law for the relief of bankrupt or insolvent debtors, compounds with his or
her creditors or makes an assignment of his or her remuneration for their
benefit, or
(e)
becomes a mentally incapacitated person,
or
(f)
is convicted in New South Wales of an offence
that is punishable by imprisonment for 12 months or more or is convicted
elsewhere than in New South Wales of an offence that, if committed in New
South Wales, would be an offence so punishable, or
(g)
is removed from office under section
9.
(2)
If the office of Advocate becomes vacant, a
person is, subject to this Act, to be appointed to fill the
vacancy.
9Removal from office of Advocate
The Governor may remove the Advocate from office,
but only for incompetence, incapacity or misbehaviour.
10Advocate not Public Service employee
The office of Advocate is a statutory office and
the provisions of the Government Sector Employment Act
2013 relating to the employment of Public Service
employees do not apply to that office (except as provided by section
7).
11Acting Advocate
(1)
The Governor may, from time to time, appoint a
person to act in the office of the Advocate during the illness or absence of
the Advocate (or during a vacancy in the office of the Advocate) and a person,
while so acting, has all the functions of the Advocate.
(2)
The Governor may, at any time, remove a person
from the office of acting Advocate.
(3)
The acting Advocate is entitled to be paid such
remuneration (including travelling and subsistence allowances) as the Minister
may from time to time determine.
12Staff of Advocate
Persons may be employed in the Public Service
under the Government Sector Employment Act
2013 to enable the Advocate to exercise his or her
functions.
13Delegation
The Advocate may delegate any of his or her
functions (other than this power of delegation) to a member of the staff of
the Advocate or to a person of a class prescribed by the
regulations.
Part 3Functions of Advocate
14Principles governing work of Advocate
The following principles are to govern the work
of the Advocate—
(a)
the safety, welfare and well-being of children
and young people are the paramount considerations,
(b)
the views of children and young people are to be
given serious consideration and taken into account,
(c)
a co-operative relationship between children and
young people and their families and communities is important for the safety,
welfare and well-being of children and young
people.
15Functions of Advocate
(1)
The functions of the Advocate are as
follows—
(a)
to advocate for and promote the safety, welfare
and well-being of children and young people,
(b)
to promote the participation of children and
young people in the making of decisions that affect their lives and to
encourage government and non-government agencies to seek the participation of
children and young people appropriate to their age and
maturity,
(c)
to conduct special inquiries under Part 5 into
issues affecting children and young people,
(d)
to make recommendations to government and
non-government agencies on legislation, reports, policies, practices,
procedures and services affecting children and young
people,
(e)
to conduct, promote and monitor research into
issues affecting children and young people,
(f)
to promote the provision of information and
advice to assist children and young people,
(g)
to prepare, in consultation with the Minister, a
3-year strategic plan for children and young people in the
State,
(h)
such other functions as are conferred or imposed
on the Advocate by or under this or any other Act.
(2)
In exercising functions under this Act the
Advocate must do the following—
(a)
focus on systemic issues affecting children and
young people,
(b)
give priority to the interests and needs of
vulnerable and disadvantaged children and young people,
(c)
consult with children and young people from a
broad range of backgrounds and age groups throughout the
State,
(d)
work co-operatively with other organisations that
provide services to or represent the interests of children and young
people,
(e)
work co-operatively with the
Council.
16Co-operation with other agencies
(1)
The Advocate and other government or
non-government agencies that provide or deal with services or issues affecting
children and young people must work in co-operation in the exercise of their
respective functions.
(2)
Arrangements may be made by the Minister with the
Minister to whom a government agency is responsible to secure such
co-operation, including in connection with the provision by the agency of
information (or access to documents) required by the Advocate in relation to
services or issues affecting children and young people.
(3)
A reference in this section to the provision of
access to documents includes a reference to the provision of copies of
documents.
17Referral of matters to police and other investigative
agencies
(1)
This section applies to any information obtained
by the Advocate in the course of exercising his or her functions, being
information relating to a possible criminal offence under any law or to
grounds for possible disciplinary action under any law.
(2)
The Advocate may refer any such information to
the Commissioner of Police, the Ombudsman, the Secretary of the Department of
Family and Community Services or any other investigative or government agency
that the Advocate considers appropriate.
18Reports under Children and
Young Persons (Care and Protection) Act
1998
(1)
Any information obtained by the Advocate in the
course of exercising his or her functions may be used for the purposes of
making a report to the Secretary of the Department of Family and Community
Services under section 24 (Report concerning child or young person at risk of
significant harm) or 27 (Mandatory reporting) of the Children and Young Persons (Care and Protection) Act
1998.
(2)
A report referred to in section 29 of the Children and Young Persons (Care and Protection) Act
1998 may be provided to the Advocate in accordance with a
requirement under a provision of this Act. Any such report may not be
subsequently dealt with by the Advocate in a manner that contravenes that
section, except to the extent that it is necessary for the Advocate to do so
in the exercise of his or her functions.
19Assistance to particular children or young
people
(1)
The Advocate does not have the function of
dealing directly with the complaints or concerns of particular children or
young people.
(2)
The Advocate may, despite subsection (1), provide
children, young people and their families, friends and advocates with
information about and referral to government and non-government programs and
services.
Part 4Youth Advisory Council and other advisory
committees
20Establishment of Council
There is established by this Act a Youth Advisory
Council.
21Membership of Council
(1)
The Council is to consist of—
(a)
12 part-time members appointed by the Minister,
and
(b)
an ex-officio member, being the Advocate or the
Advocate’s nominee.
(2)
The persons appointed by the Minister as
part-time members must have such experience, skills and qualifications as the
Minister considers necessary for them to make a contribution to the work of
the Council.
(3)
At least 6 of the part-time members are to be
persons who are under the age of 25 years at the time of their
appointment.
(4)
The membership of the Council is to reflect the
diversity of young people in the State.
(5)
The Minister is to consider any recommendations
made by the Advocate in relation to the appointment of
members.
(6)
Schedule 1 contains provisions relating to the
membership and procedure of the Council.
22Functions of Council
(1)
The Council has the following
functions—
(a)
to advise the Minister and the Advocate on the
planning, development, integration and implementation of government policies
and programs concerning young persons,
(b)
to consult with young persons, community groups
and government agencies on issues and policies concerning young
persons,
(c)
to monitor and evaluate legislation and
government policies and programs concerning young persons and to recommend
changes if required,
(d)
to conduct forums, approved by the Minister, on
issues of interest to young persons,
(e)
to collect, analyse and provide the Minister and
the Advocate with information on issues and policies concerning young
persons.
(2)
Any advice given to the Minister by the Council
may be given either at the request of the Minister or without any such
request.
(3)
The Council must work co-operatively with the
Advocate in exercising its functions.
(4)
The Council has such other functions as are
conferred or imposed on it by or under this or any other
Act.
23Other advisory committees
(1)
The Advocate may appoint such other advisory
committees as he or she considers appropriate to assist in the exercise of the
Advocate’s and the Council’s functions.
(2)
The Advocate may disband any such committee at
any time.
(3)
The procedure of any other advisory committee is
to be determined by the Advocate or (subject to any determination by the
Advocate) by the committee itself.
(4)
A member of an advisory committee is entitled to
such allowances in connection with the work of the committee as the Minister
approves in respect of that member.
Part 5Special inquiries by Advocate
24Establishment of special inquiry
(1)
The Minister may require the Advocate to conduct
a special inquiry into a specified issue affecting children or young people,
either at the request of the Advocate or on the Minister’s own
initiative.
(2)
The Advocate is to cause public notice of any
such special inquiry to be given in a newspaper circulating throughout the
State and in such other manner as the Advocate considers
appropriate.
25Report of results of special inquiry
The Advocate is to make a special report under
Part 6 on the results of a special inquiry.
26General conduct of special inquiries
In a special inquiry, the Advocate—
(a)
is to act with as little formality as possible,
and
(b)
may inform himself or herself on any matter in
any way the Advocate thinks fit, and is not bound by the rules of evidence,
and
(c)
may receive information or submissions in the
form of oral or written statements, and
(d)
may consult with such persons as the Advocate
thinks fit.
27Hearings in special inquiries
(1)
The Advocate may hold hearings for the purposes
of a special inquiry.
(2)
The Advocate may also hold public seminars,
conduct workshops and establish working groups and task forces for the
purposes of a special inquiry.
(3)
Before the Advocate begins to hold hearings, the
Advocate must give reasonable notice, by advertisement published in a
newspaper circulating throughout the State and in such other manner as the
Advocate considers appropriate—
(a)
of the Advocate’s intention to hold the
hearings, and
(b)
of the subject-matter of the hearings,
and
(c)
of the time and place at which the first of the
hearings is to begin.
(4)
The Advocate may call for written submissions to
be made before the hearings begin, and may specify a time and date by which
those submissions must be made. The Advocate may extend the time for the
making of submissions.
(5)
The Advocate (or a member of the staff of the
Advocate appointed by the Advocate) is to preside at a
hearing.
(6)
A hearing is to be held in
public.
(7)
However, a hearing is to be held in private
if—
(a)
the Advocate is satisfied that it is desirable to
do so because of the confidential nature of any evidence or matter or for any
other reason, or
(b)
the hearing concerns the evidence of a child or
young person and the child or young person requests a private
hearing.
(8)
The regulations may make provision for or with
respect to hearings and, in particular, for or with respect to matters
concerning a private hearing before the Advocate.
(9)
If it is shown to the satisfaction of the
Advocate that any person is substantially and directly interested in the
subject-matter of a special inquiry, the Advocate may authorise the person to
appear and be heard at the hearing or a specified part of the
hearing.
28Legal representation
(1)
A person appearing at a hearing of a special
inquiry is not entitled to be represented by an Australian legal practitioner
unless the Advocate authorises such representation.
(2)
The Advocate is to give a person a reasonable
opportunity to make submissions regarding representation by an Australian
legal practitioner.
(3)
The Advocate is not to give an authorisation
unless he or she is satisfied that the authorisation is necessary or desirable
in the public interest or for the safety, welfare or well-being of a child or
young person.
29Restriction on publication of evidence at private
hearings
(1)
The Advocate may direct that—
(a)
any evidence given before the Advocate at a
private hearing of a special inquiry, or
(b)
the contents of any document, or a description of
any thing, produced to the Advocate at a private hearing,
or
(c)
any information that might enable a person who
has given or may be about to give evidence at a private hearing to be
identified or located, or
(d)
the fact that any person has given or may be
about to give evidence at a private hearing,
must not be published except in such manner, and to such
persons, as the Advocate specifies.
(2)
The Advocate is not to give a direction unless
satisfied that the direction is necessary or desirable in the public interest
or for the safety, welfare or well-being of a child or young
person.
(3)
A person must not make a publication in
contravention of a direction given under this section.
Maximum penalty—20 penalty
units.
30Tendering information, documents and
evidence
(1)
For the purposes of a special inquiry, the
Advocate may, by notice in writing served on any employee of a government
agency or any other person require the employee or other person to do any one
or more of the following—
(a)
to send to the Advocate, on or before a day
specified in the notice, a statement setting out such information as is so
specified,
(b)
to send to the Advocate, on or before a day
specified in the notice, such documents as are so
specified,
(c)
to attend a hearing before the Advocate to give
evidence.
(2)
Any such employee or other person is, subject to
this Act and any other relevant Act or law, under a duty to comply with the
notice and to answer any question the employee or other person is required to
answer by the person presiding at the hearing before the
Advocate.
(3)
A person must not—
(a)
give to the Advocate, whether orally or in
writing, information that the person knows is false or misleading in a
material particular (unless the person informs the Advocate of that fact),
or
(b)
at a hearing before the Advocate, give evidence
that the person knows is false or misleading in a material
particular.
Maximum penalty—50 penalty units or
imprisonment for 6 months, or both.
(4)
If documents are given to the Advocate under this
section, the Advocate—
(a)
may take possession of, and make copies of or
take extracts from, the documents, and
(b)
may keep possession of the documents for such
period as is necessary for the purposes of the special inquiry to which they
relate, and
(c)
during that period must permit the documents to
be inspected at all reasonable times by the persons who would be entitled to
inspect them if they were not in the possession of the
Advocate.
31Exemptions for Cabinet documents and other privileged
material
(1)
Nothing in Part 3 or this Part—
(a)
requires or authorises any person to give any
statement of information or answer any question that relates to confidential
proceedings of Cabinet, or to disclose Cabinet information,
or
(b)
requires any person to give any statement of
information, answer any question or disclose any document if the person can
claim privilege not to do so.
(2)
For the purposes of this section, a certificate
of the Secretary or General Counsel of the Department of Premier and Cabinet
that—
(a)
any information or question relates to
confidential proceedings of Cabinet, or
(b)
the information is Cabinet
information,
is conclusive of that fact.
(3)
In this section—
Cabinet includes a committee
of Cabinet or a subcommittee of such a committee.
Cabinet
information means information that is Cabinet information
under the Government Information (Public
Access) Act 2009.
disclosure of a document
includes the provision of copies of the document, the granting of access to
the document or the disclosure of the contents of the document.
document includes a part of a
document.
privilege means privilege
based on a claim by a person that evidence or other information about a matter
or document—
(a)
might tend to incriminate the person or make the
person liable to any forfeiture or penalty, or
(b)
could not be required to be adduced in
proceedings before a New South Wales court by reason of the operation of
section 10 (Parliamentary privilege preserved) or Part 3.10 (Privileges) of
Chapter 3 of the Evidence Act
1995.
Part 6Reports by Advocate
32Annual reports to Parliament
(1)
The Advocate is required to prepare, within the
period of 4 months after 30 June in each year, a report of the
Advocate’s operations during the year ended on that 30 June and furnish
the report to the Presiding Officer of each House of
Parliament.
(2)
A report by the Advocate under this section must
include the following—
(a)
a description of the Advocate’s activities
during that year in relation to each of the Advocate’s
functions,
(b)
an evaluation of the response of relevant
authorities to the recommendations of the Advocate,
(c)
any recommendations for changes in the laws of
the State, or for administrative action, that the Advocate considers should be
made as a result of the exercise of the Advocate’s
functions,
(d)
a description of any request made by the Advocate
to conduct a special inquiry that was not approved by the Minister and a
statement of the reasons given by the Minister for not approving that
request.
33Special and other reports
(1)
The Advocate is to make a special report to the
Minister on any particular issue or general matter requested by the Minister
(whether or not in connection with a special inquiry). The special report may
be furnished by the Advocate to the Presiding Officer of each House of
Parliament.
(2)
The Advocate may, at any time, make a report on
any particular issue or general matter relating to the Advocate’s
functions and furnish the report to the Presiding Officer of each House of
Parliament.
34Furnishing of draft reports to
Minister
(1)
The Advocate is to provide the Minister with a
draft of each report that is to be furnished to the Presiding Officers under
this Part.
(2)
Each draft report is to be provided to the
Minister at least one month (or other period agreed by the Minister) before it
is furnished to the Presiding Officers.
(3)
The Minister may provide the Advocate with any
comments the Minister wishes to make in relation to a draft
report.
(4)
The Minister may require the Advocate to consult
further in relation to a draft report and provide a further draft report in
accordance with subsection (2). Only one such requirement can be made with
respect to a report.
(5)
The Advocate is not bound to amend the
Advocate’s report in light of any comments made by the Minister, but
must, before finalising the Advocate’s report, consider any comment that
was provided to the Advocate by the Minister (and the results of further
consultation) before the report is furnished to the Presiding
Officers.
35Provisions relating to reports to
Parliament
(1)
A copy of a report furnished to the Presiding
Officer of a House of Parliament under this Part is to be laid before that
House within 15 sitting days of that House after it is received by the
Presiding Officer.
(2)
The Advocate may include in a report a
recommendation that the report be made public
immediately.
(3)
If a report includes a recommendation by the
Advocate that the report be made public immediately, a Presiding Officer of a
House of Parliament may make it public whether or not that House is in session
and whether or not the report has been laid before that
House.
(4)
If such a report is made public by a Presiding
Officer of a House of Parliament before it is laid before that House, it
attracts the same privileges and immunities as if it had been laid before that
House.
(5)
A Presiding Officer need not inquire whether all
or any conditions precedent have been satisfied as regards a report purporting
to have been made and furnished in accordance with this
Act.
Part 7Parliamentary Joint Committee
36Constitution of Committee
(1)
On the commencement of this Part and as soon as
practicable after the commencement of the first session of each Parliament, a
joint committee of members of Parliament, to be known as the Committee on
Children and Young People, is to be appointed.
(2)
The Parliamentary Joint Committee has the
functions conferred or imposed on it by or under this Act or any other
Act.
37Functions of Committee
(1)
The Parliamentary Joint Committee has the
following functions under this Act—
(a)
to monitor and review the exercise by the
Advocate of the Advocate’s functions,
(b)
to monitor and review the exercise by the
Children’s Guardian of functions under—
(i)
the Child Protection
(Working with Children) Act 2012, or
(ii)
the Children’s
Guardian Act 2019 in relation to the reportable conduct
scheme and working with relevant entities to prevent, identify and respond to
reportable conduct and promote compliance with the
scheme,
(c)
to report to both Houses of Parliament, with such
comments as it thinks fit, on any matter relating to the Advocate or connected
with the exercise of the Advocate’s functions, or on any matter relating
to the exercise of the Children’s Guardian’s functions specified
in paragraph (b), to which, in the opinion of the Joint Committee, the
attention of Parliament should be directed,
(d)
to examine each annual or other report of the
Advocate and report to both Houses of Parliament on any matter appearing in,
or arising out of, any such report,
(e)
to examine trends and changes in services and
issues affecting children and young people, and report to both Houses of
Parliament any changes that the Joint Committee thinks desirable to the
functions and procedures of the Advocate,
(f)
to inquire into any question in connection with
the Advocate’s functions which is referred to it by both Houses of
Parliament, and report to both Houses on that
question.
(2)
Nothing in this Part authorises the Parliamentary
Joint Committee—
(a)
to investigate a matter relating to particular
conduct, including conduct under Part 4 of the Children’s
Guardian Act 2019, or
(b)
to review a decision to investigate, not to
investigate or to discontinue investigation of a particular matter,
or
(c)
to review the findings, recommendations or other
decisions of the Children’s Guardian in relation to a particular
matter.
(3)
The Advocate may, as soon as practicable after a
report of the Parliamentary Joint Committee has been tabled in a House of
Parliament, make and furnish to the Presiding Officer of that House a report
in response to the report of the Committee. Section 35 applies to such a
report.
s 37: Am 2019 No 25,
Sch 5.2[1]–[3].
38Membership of Committee
(1)
The Parliamentary Joint Committee is to consist
of 7 members, of whom—
(a)
3 are to be members of, and appointed by, the
Legislative Council, and
(b)
4 are to be members of, and appointed by, the
Legislative Assembly.
(2)
The appointment of members of the Parliamentary
Joint Committee is, as far as practicable, to be in accordance with the
practice of Parliament with respect to the appointment of members to serve on
joint committees of both Houses of Parliament.
(3)
A person is not eligible for appointment as a
member of the Parliamentary Joint Committee if the person is a Minister of the
Crown or a Parliamentary Secretary.
(4)
Schedule 2 contains provisions relating to the
Parliamentary Joint Committee.
Part 8Miscellaneous
39Act to bind Crown
This Act binds the Crown in right of New South
Wales and, in so far as the legislative power of the Parliament of New South
Wales permits, the Crown in all its other capacities.
40Protection from liability
A matter or thing done or omitted to be done by
the Advocate, a member of staff of the Advocate, the Council, members of the
Council, an advisory committee of the Advocate, a member of any such advisory
committee or any person acting under the direction of the Advocate or the
Council or any advisory committee does not, if the matter or thing was done or
omitted in good faith for the purposes of executing this or any other Act,
subject the Advocate, a member of staff of the Advocate, a member of the
Council or advisory committee or a person so acting personally to any action,
liability, claim or demand.
41Proceedings for offences
(1)
Proceedings for offences under this Act or the
regulations are to be dealt with summarily before the Local
Court.
(2)
Despite any other law, proceedings for an offence
under this Act must be commenced not later than 2 years from when the offence
was alleged to have been committed.
42Regulations
(1)
The Governor may make regulations, not
inconsistent with this Act, for or with respect to any matter that by this Act
is required or permitted to be prescribed or that is necessary or convenient
to be prescribed for carrying out or giving effect to this
Act.
(2)
The regulations may create offences punishable by
a penalty not exceeding 20 penalty units.
43Review of Act
(1)
The Minister is to review this Act to determine
whether the policy objectives of the Act remain valid and whether the terms of
the Act remain appropriate for securing those
objectives.
(2)
The review is to be undertaken as soon as
possible after 5 years from the date of assent to this
Act.
(3)
A report on the outcome of the review is to be
tabled in each House of Parliament within 12 months after the end of the
period of 5 years.
(4)
When carrying out the review, the Minister is
required—
(a)
to consult with government and non-government
agencies that provide or deal with services or issues affecting children and
young people, and
(b)
to consult, as far as practicable, with children
and young people, and
(c)
to invite and consider public submissions
relating to the review of this Act.
Schedule 1Provisions
relating to membership and procedure of Youth Advisory
Council
(Section 21
(6))
1Definition
In this Schedule, member means a member of the
Youth Advisory Council.
2Chair and Deputy Chair of Council
(1)
Of the appointed members of the Council, 2 are
(in and by their respective instruments of appointment or in and by other
instruments executed by the Minister) to be appointed as Chair and Deputy
Chair of the Council respectively.
(2)
The Minister may remove a member from the office
of Chair or Deputy Chair of the Council at any time.
(3)
A person holding office as Chair or Deputy Chair
of the Council vacates that office if the person—
(a)
is removed from that office by the Minister,
or
(b)
resigns that office by instrument in writing
addressed to the Minister, or
(c)
ceases to be a member.
3Deputies of members
(1)
The Minister may, from time to time, appoint a
person to be the deputy of a member, and the Minister may revoke any such
appointment.
(2)
In the absence of a member, the member’s
deputy—
(a)
is, if available, to act in the place of the
member, and
(b)
while so acting, has all the functions of the
member and is taken to be a member.
(3)
The deputy of a member who is Chair or Deputy
Chair of the Council does not (because of this clause) have the member’s
functions as Chair or Deputy Chair.
(4)
A person, while acting in the place of a member,
is entitled to be paid such allowances as the Minister may from time to time
determine in respect of the person.
4Terms of office
Subject to this Schedule, an appointed member
holds office for such period (not exceeding 2 years) as may be specified in
the member’s instrument of appointment, but is eligible (if otherwise
qualified) for re-appointment.
5Allowances
An appointed member is entitled to be paid such
allowances as the Minister may from time to time determine in respect of the
member.
6Vacancy in office of member
(1)
The office of an appointed member becomes vacant
if the member—
(a)
dies, or
(b)
completes a term of office and is not
re-appointed, or
(c)
resigns the office by instrument in writing
addressed to the Minister, or
(d)
is removed from office by the Minister under this
clause or by the Governor under Part 6 of the Government Sector
Employment Act 2013, or
(e)
is absent from 4 consecutive meetings of the
Council of which reasonable notice has been given to the member personally or
in the ordinary course of post, except on leave granted by the Council or
unless, before the expiration of 4 weeks after the last of those meetings, the
member is excused by the Council for having been absent from those meetings,
or
(f)
becomes bankrupt, applies to take the benefit of
any law for the relief of bankrupt or insolvent debtors, compounds with his or
her creditors or makes an assignment of his or her remuneration for their
benefit, or
(g)
becomes a mentally incapacitated person,
or
(h)
is convicted in New South Wales of an offence
that is punishable by imprisonment for 12 months or more or is convicted
elsewhere than in New South Wales of an offence that, if committed in New
South Wales, would be an offence so punishable.
(2)
The Minister may remove an appointed member from
office at any time.
7Filling of vacancy in office of
member
If the office of an appointed member becomes
vacant, a person is, subject to this Act, to be appointed to fill the
vacancy.
8Effect of certain other Acts
(1)
The provisions of the Government Sector Employment Act 2013
relating to the employment of Public Service employees do not apply to a
member.
(2)
If, by or under any Act, provision is
made—
(a)
requiring a person who is the holder of a
specified office to devote the whole of his or her time to the duties of that
office, or
(b)
prohibiting the person from engaging in
employment outside the duties of that office,
the provision does not operate to disqualify the person
from holding that office and also the office of an appointed member or from
accepting and retaining any remuneration payable to the person under this Act
as such a member.
(3)
The office of an appointed member is not, for the
purposes of any Act, an office or place of profit under the
Crown.
9General procedure
The procedure for the calling of meetings of the
Council and for the conduct of business at those meetings is, subject to this
Act and the regulations, to be as determined by the
Council.
10Quorum
The quorum for a meeting of the Council is a
majority of the members for the time being.
11Presiding member
(1)
The Chair of the Council or, in the absence of
the Chair, the Deputy Chair of the Council or, in the absence of both, another
member elected to chair the meeting by the members is to preside at a meeting
of the Council.
(2)
The person presiding at any meeting of the
Council has a deliberative vote and, in the event of an equality of votes, has
a second or casting vote.
12Voting
A decision supported by a majority of the votes
cast at a meeting of the Council at which a quorum is present is the decision
of the Council.
13First meeting
The Minister is to call the first meeting of the
Council in such manner as the Minister thinks fit.
Schedule 2Parliamentary
Joint Committee
(Section 38
(4))
1Definition
In this Schedule, Committee means the
Parliamentary Joint Committee constituted under section 36 (1) of this
Act.
2Vacancies
(1)
A member of the Committee ceases to hold
office—
(a)
when the Legislative Assembly is dissolved or
expires by the effluxion of time, or
(b)
if the member becomes a Minister of the Crown or
a Parliamentary Secretary, or
(c)
if the member ceases to be a member of the
Legislative Council or Legislative Assembly, or
(d)
if, being a member of the Legislative Council,
the member resigns the office by instrument in writing addressed to the
President of the Legislative Council, or
(e)
if, being a member of the Legislative Assembly,
the member resigns the office by instrument in writing addressed to the
Speaker of the Legislative Assembly, or
(f)
if the member is discharged from office by the
House of Parliament to which the member belongs.
(2)
Either House of Parliament may appoint one of its
members to fill a vacancy among the members of the Committee appointed by that
House.
3Chair and Deputy Chair
(1)
There is to be a Chair and a Deputy Chair of the
Committee, who are to be elected by and from the members of the
Committee.
(2)
A member of the Committee ceases to hold office
as Chair or Deputy Chair of the Committee if—
(a)
the member ceases to be a member of the
Committee, or
(b)
the member resigns the office by instrument in
writing presented to a meeting of the Committee, or
(c)
the member is discharged from office by the
Committee.
(3)
At any time when the Chair is absent from New
South Wales or is, for any reason, unable to perform the duties of Chair or
there is a vacancy in that office, the Deputy Chair may exercise the functions
of the Chair under this Act or under the Parliamentary
Evidence Act 1901.
4Procedure
(1)
The procedure for the calling of meetings of the
Committee and for the conduct of business at those meetings is, subject to
this Act, to be as determined by the Committee.
(2)
The Clerk of the Legislative Assembly is to call
the first meeting of the Committee in each Parliament in such manner as the
Clerk thinks fit.
(3)
Subclause (2) does not apply to the Committee as
first constituted under this Act.
(4)
At a meeting of the Committee, 4 members
constitute a quorum, but the Committee must meet as a joint committee at all
times.
(5)
The Chair or, in the absence of the Chair, the
Deputy Chair (or, in the absence of both the Chair and the Deputy Chair, a
member of the Committee elected to chair the meeting by the members present)
is to preside at a meeting of the Committee.
(6)
The Deputy Chair or other member presiding at a
meeting of the Committee has, in relation to the meeting, all the functions of
the Chair.
(7)
The Chair, Deputy Chair or other member presiding
at a meeting of the Committee has a deliberative vote and, in the event of an
equality of votes, also has a casting vote.
(8)
A question arising at a meeting of the Committee
is to be determined by a majority of the votes of the members present and
voting.
(9)
The Committee may sit and transact business
despite any prorogation of the Houses of Parliament or any adjournment of
either House of Parliament.
(10)
The Committee may sit and transact business on a
sitting day of a House of Parliament during the time of
sitting.
5Reporting when Parliament not in
session
(1)
If a House of Parliament is not sitting when the
Committee seeks to furnish a report to it, the Committee may present copies of
the report to the Clerk of the House.
(2)
The report—
(a)
on presentation and for all purposes is taken to
have been laid before the House, and
(b)
may be printed by authority of the Clerk,
and
(c)
if printed by authority of the Clerk, is for all
purposes taken to be a document published by or under the authority of the
House, and
(d)
is to be recorded in the Minutes, or Votes and
Proceedings, of the House on the first sitting day of the House after receipt
of the report by the Clerk.
6Evidence
(1)
The Committee has power to send for persons,
papers and records.
(2)
Subject to clause 7, the Committee must take all
evidence in public.
(3)
If the Committee as constituted at any time has
taken evidence in relation to a matter but the Committee as so constituted has
ceased to exist before reporting on the matter, the Committee as constituted
at any subsequent time, whether during the same or another Parliament, may
consider that evidence as if it had taken the evidence.
(4)
The production of documents to the Committee is
to be in accordance with the practice of the Legislative Assembly with respect
to the production of documents to select committees of the Legislative
Assembly.
7Confidentiality
(1)
If any evidence proposed to be given before, or
the whole or a part of a document produced or proposed to be produced to, the
Committee relates to a secret or confidential matter, the Committee may, and
at the request of the witness giving the evidence or the person producing the
document must—
(a)
take the evidence in private,
or
(b)
direct that the document, or the part of the
document, be treated as confidential.
(2)
If a direction under subclause (1) applies to a
document or part of a document produced to the Committee—
(a)
the contents of the document or part are, for the
purposes of this clause, to be regarded as evidence given by the person
producing the document or part and taken by the Committee in private,
and
(b)
the person producing the document or part is, for
the purposes of this clause, to be regarded as a
witness.
(3)
If, at the request of a witness, evidence is
taken by the Committee in private—
(a)
the Committee must not, without the consent in
writing of the witness, and
(b)
a person (including a member of the Committee)
must not, without the consent in writing of the witness and the authority of
the Committee under subclause (5),
disclose or publish the whole or a part of that
evidence.
Maximum penalty—20 penalty units or
imprisonment for 3 months, or both.
(4)
If evidence is taken by the Committee in private
otherwise than at the request of a witness, a person (including a member of
the Committee) must not, without the authority of the Committee under
subclause (5), disclose or publish the whole or part of that
evidence.
Maximum penalty—20 penalty units or
imprisonment for 3 months, or both.
(5)
The Committee may, in its discretion, disclose or
publish or, by writing under the hand of the Chair, authorise the disclosure
or publication of evidence taken in private by the Committee, but this
subclause does not operate so as to affect the necessity for the consent of a
witness under subclause (3).
(6)
Nothing in this clause prohibits—
(a)
the disclosure or publication of evidence that
has already been lawfully published, or
(b)
the disclosure or publication by a person of a
matter of which the person has become aware otherwise than by reason, directly
or indirectly, of the giving of evidence before the
Committee.
(7)
This clause has effect despite section 4 of the
Parliamentary Papers (Supplementary Provisions) Act
1975.
(8)
If evidence taken by the Committee in private is
disclosed or published in accordance with this clause, sections 5 and 6 of the
Parliamentary Papers (Supplementary Provisions) Act
1975 apply to and in relation to the disclosure or
publication as if it were a publication of that evidence under the authority
of section 4 of that Act.
Note—
The Defamation Act
2005 makes provision for 2 defences in respect of the
publication of defamatory matter that is contained in evidence taken by, or
documents produced to, the Committee in private, but only if the evidence or
documents have been disclosed or published in accordance with this
clause.
Section 28 of the Defamation Act
2005 (when read with clause 8 of Schedule 2 to that Act)
ensures that such documents attract the defence relating to public documents
in defamation proceedings.
Section 29 of the Defamation Act
2005 (when read with clause 17 of Schedule 3 to that Act)
ensures that proceedings in which such evidence is taken or documents produced
attract the defences relating to fair reports of proceedings of public concern
in defamation proceedings.
8Application of certain Acts
For the purposes of the Parliamentary Evidence Act 1901 and the
Parliamentary Papers (Supplementary Provisions) Act
1975 and for any other purposes—
(a)
the Committee is to be regarded as a joint
committee of the Legislative Council and Legislative Assembly,
and
(b)
the proposal for the appointment of the Committee
is to be regarded as having originated in the Legislative
Assembly.
9Validity of certain acts or
proceedings
Any act or proceeding of the Committee is, even
though at the time when the act or proceeding was done, taken or commenced
there was—
(a)
a vacancy in the office of a member of the
Committee, or
(b)
any defect in the appointment, or any
disqualification, of a member of the Committee,
as valid as if the vacancy, defect or disqualification
did not exist and the Committee were fully and properly
constituted.
Schedule 3Savings,
transitional and other provisions
Part 1Regulations
1Regulations
(1)
The regulations may contain provisions of a
savings or transitional nature consequent on the enactment of this Act or any
Act that amends this Act.
(2)
Any such provision may, if the regulations so
provide, take effect from the date of assent to the Act concerned or a later
date.
(3)
To the extent to which any such provision takes
effect from a date that is earlier than the date of its publication on the NSW
legislation website, the provision does not operate so as—
(a)
to affect, in a manner prejudicial to any person
(other than the State or an authority of the State), the rights of that person
existing before the date of its publication, or
(b)
to impose liabilities on any person (other than
the State or an authority of the State) in respect of anything done or omitted
to be done before the date of its publication.
(4)
Any such provision has effect despite anything to
the contrary in this Schedule.
(5)
The regulations may make separate savings and
transitional provisions or amend this Schedule to consolidate the savings and
transitional provisions.
Part 2Provisions consequent on enactment of this
Act
2Definitions
In this Part—
Commission means the
Commission for Children and Young People constituted by the former
Act.
Commissioner means the
Commissioner for the Commission for Children and Young People appointed under
the former Act.
former Act means the Commission for Children and Young People Act
1998, as in force before its repeal by this
Act.
3Abolition of Commission
(1)
On the commencement of this clause—
(a)
the Commission is abolished,
and
(b)
any assets, rights and liabilities of the
Commission become the assets, rights and liabilities of the
Crown.
(2)
In this clause—
assets means any legal or
equitable estate or interest (whether present or future and whether vested or
contingent) in real or personal property of any description (including money),
and includes securities, choses in action and documents.
liabilities means all
liabilities, debts and obligations (whether present or future and whether
vested or contingent).
rights means all rights,
powers, privileges and immunities (whether present or future and whether
vested or contingent).
4Commissioner
(1)
On the commencement of this clause, the person
who, immediately before that commencement, held office as the Commissioner of
the Commission ceases to hold that office.
(2)
A person who, under this clause, ceases to hold
office is not entitled to any remuneration or compensation because of the loss
of that office.
5References to Commission or
Commissioner
A reference in any other Act or in an instrument
made under an Act or in any other document to the Commission or to the
Commissioner is to be construed as a reference to the Advocate for Children
and Young People.
6Continuation of membership of Youth Advisory
Council
(1)
A person who holds office as an appointed member
of the Youth Advisory Council established under the Youth Advisory Council Act 1989
immediately before the repeal of that Act (the former Council) is
taken to be appointed as a member of the Youth Advisory Council established
under this Act for the remainder of the term for which the person was so
appointed.
(2)
A reference in subclause (1) to an appointed
member of the former Council includes a reference to the Chair or Deputy Chair
of the former Council.
7Continuation of existing Parliamentary Joint
Committee
On the commencement of Part 7 of this Act, the
joint committee of members of Parliament appointed under Part 6 of the Commission for Children and Young People Act
1998 (as in force immediately before its repeal by this
Act) is taken to be appointed as the Committee on Children and Young People
under this Act.
Schedules 4, 5
sch 4: Rep 1987 No
15, sec 30C.
sch 5: Rep 1987 No
15, sec 30C.
Historical notes
Table of amending instruments
Advocate for Children and Young
People Act 2014 No 29. Assented to 24.6.2014. Date of
commencement, 9.1.2015, sec 2 and 2014 (713) LW 14.11.2014. This Act has been
amended as follows—
2019
No 25
Children’s Guardian Act
2019. Assented to 4.12.2019.
Date of commencement of Sch 5.2, 1.3.2020, sec
2(1).
This Act has been amended by sec 30C of the
Interpretation Act 1987 No
15.
Table of amendments
Sec 37
Am 2019 No 25, Sch
5.2[1]–[3].
Schs 4,
5
Rep 1987 No 15, sec
30C.